Tribal Chief

Brenda Commander

Tribal Council

Crystal Tucker

Merion Tomah

Linda Raymond

John Flewelling

Sandra Hayes

HOULTON BAND OF MALISEET INDIANS

88 Bell Road

Suzanne Desiderio

12.17.13

Curt Spalding Regional Administrator

USEPA REGION 1 New England

5 Post Office Square

Mail Code ORA

Boston MA 02109 3912

Littleton ME 04730

Re Supplemental Comments Regarding Public Notice of EPA's Review of Maine Water Quality

Standard Revisions as They Apply in Indian Territories

Administration

Telephone

207 532 4273

In State

1800 564 8524

OutofState

1800 545 8524

Fax

207 532 2660

The Houlton Band of Maliseet Indians respectfully submits these supplemental comments on

the State of Maine's request for approval of revised water quality standards WQSs for arsenic

acrolein and phenol The Tribe requests that the EPA make these comments part of the record

Specifically the Houlton Band writes to emphasize the federallyprotected nature of its water and

fishing rights on Maliseet trust lands and in Maliseet waters and the EPA's trust responsibility to protect

those uses 1These comments also address why the State's use of inconsistent fish consumption rates is

arbitrary and capricious The Houlton Band reiterates and incorporates its prior comments dated

September 13 2013 including all attachments thereto and urges the EPA to disapprove Maine's

inadequate WQSs

I The Houlton Band's FederallyProtected Water and Fishing Rights and the EPA's Trust

Obligation to Protect those Uses under the Clean Water Act

As discussed in detail in our prior comments the Wolastoqewiyik or Maliseet Indians are river

people who have fished hunted trapped and gathered natural resources in the Wolastoq orSt John

watershed for thousands of years These resources are central to our diet culture traditions

spirituality and health and welfare Congress recognized the Maliseet way of life in the Maine Indian

Claims Settlement Act MICSA See eg S Rep No 96957 at 11 All three tribes are riverine in their

land ownership orientation The aboriginal territory of the Houlton Band of Maliseet Indians is

centered on the Saint John River MICSA and the Maine Implementing Act accordingly provided a

1

For purposes of these comments Maliseet waters include those portions of the Meduxnekeag River and its

tributaries that run through Houlton Band trust or fee lands including Big Brook Suitter Brook Smith Brook Dead

Stream and the small brook that enters Cochran Lake from Houlton Band fee property as well as any other water

bodies in or adjacent to these lands

1

EPA004853
homeland for the Houlton Band by setting aside land or natural resources in trust for the Band See 25

USC 1724 d 25 USC 1724 d Note Public Law No 99566 4a Oct 27 1986 Congress

explained that these trust resources would substitute and were in exchange for the Band's aboriginal

lands and natural resources S Rep No 96957 at 24 explaining that t he land is intended to

constitute satisfaction of the Band's legal claims and that Congress seeks to settle all Indian land

claims in Maine fairly see also 25 USC 1721 findings and purpose 1723 relinquishing lands and

natural resources The United States Department of the Interior confirmed on January 15 1993 that

Maliseet trust lands acquired under MICSA Iocated on both banks of the Meduxnekeag River a

tributary of the St John are an Indian reservation for purposes of federal law See Attachment

As a matter of federal law the lands and natural resources held in trust by the United States for

the benefit of the Houlton Band include water and fishing rights Federal common law is clear that when

Congress sets aside lands intrust for the use and benefit of an Indian tribe or individual Indians as it did

for the Houlton Band Congress impliedly reserves water and fishing rights on those lands See eg

Menominee Tribe of Indians v United States 391 US 404 405 06 1968 holding that lands acquired

for a tribe in exchange for the relinquishment of other lands include implied hunting and fishing rights

Arizona v California 373 US 546 599 1963 finding implied water rights where water from the River

would be essential to the life of the Indian people and to the animals they hunted and the crops they

raised Winters v United States 207 US 564 577 1908 holding that tribe impliedly reserved water

rights to support beneficial use of its lands This reservation of federal rights occurs regardless of

whether the lands are set aside by treaty executive order or statute See eg United States v Dian

476 US 734 745 n8 1986 Indian reservations created by statute agreement or executive order

normally carry with them the same implied hunting rights as those creates by treaty For example in

Alaska Pacific Fisheries Co v US 248 US 78 8688 1918 the Supreme Court held that where

Congress set aside lands for the landless Metlakahtla Indians it impliedly reserved fishing rights in

adjacent waters The Indians were historically fishers and hunters and the lands were chosen to provide

them access to the fishing grounds ld at 8889 Similarly in Colville Confederated Tribes v Walton 647

F2d 42 48 9th Cir 1981 the court held that Congress impliedly reserved water rights to support the

tribal fishery on tribal trust lands where the Colvilles traditionally fished for both salmon and trout

Like other Pacific Northwest Indians fishing was of economic and religious importance to them

Through MICSA Congress acquired lands in trust for the benefit of the Houlton Band to provide

the landless Maliseet Indians a home where they could preserve their riverine culture and engage in

traditional fishing hunting and gathering activities SeeS Rep No 96957 at 11 All three tribes are

riverine in their landownership orientation The aboriginal territory of the Houlton Band of Maliseet

Indians is centered on the Saint John River id at 24 The Houlton Band is impoverished it is small in

number it has no trust fund to look to and it is questionable whether the land to be acquired for it will

be utilized in an incomeproducing fashion in the foreseeable future As the Department of the

Interior expected the Tribe's reservation is located in eastern Aroostook County on the Meduxnekeag

River adjacent to one of the river's best fishing holes See HR Rep No 961353 Report of the

Department of the Interior Aug 25 1980 Federal law is clear that in reserving these lands Congress

concurrently reserved water and fishing rights for the Tribe

2

EPA004854
The Houlton Band's federallyprotected water and fishing rights include the right to water of

sufficient quantity and quality to support tribal fishing activities and other uses See United States v

Adair 723 F2d 1394 1408 11 9th Cir 1983 The leading federal Indian law treatise explains

To meet federal purposes Indian reserved water rights should be protected

against impairments of water quality as well as against diminutions in quantity

Fulfilling the purposes of Indian reservations depends on the tribes receiving water of

adequate quality as well as sufficient quantity The quality of the water necessary for

tribal uses may vary from the high quality needed for human consumption to a lesser

quality for fish and wildlife habitat to an even lower quality for irrigation Each use

however requires water that is appropriate quality to support that use

The quality Jnd quantity of water may be directly related This interrelationship

is most evident in the case of a reserved right to water for fisheries preservation The

right reserved is that amount of water necessary to maintain the fishery The fishery

consists not only of the fish themselves but also of the conditions necessary to their

survival Thus habitat protection is an integral component of the reserved right In

order to protect the fishery habitat tribes should have a right not only to a sufficient

amount of water but also to water that is of adequate quality

Cohen's Handbook of Federal Indian Law 19.03 9 at 1236 Nell Jessup Newton ed 2012 footnotes

and citations omitted

The EPA therefore has a trust obligation to protect the quality of Maliseet waters which are the

lifeblood of the Maliseet people and which support the fish animals and plants at the core of their diet

and culture See eg Parravano v Babbitt 70 F3d 539 546 47 9th Cir 1995 recognizing the Unite'd

States trust obligation to protect impliedly reserved fishing rights see also generally State Program

Requirements Approval of Application by Maine to Administer the National Pollutant Discharge

Elimination System NPDES Program 68 Fed Reg 65,052 65,056 Nov 18 2003 Clearly the physical

setting of the tribes in such close proximity to important rivers makes surface water quality

important to them and their riverine culture As the Solicitor concluded in regard to Maine's initial

application for NPDES authority in Indian country

EPA must in accordance with the best interest of the Tribes and the most exacting

fiduciary standards faithfully exercise its federal authority and discretion to protect

Maliseet tribal water quality from degradation EPA would take into consideration

more than just the minimum requirements in the CWA in overseeing a State program to

fully protect Tribal resources including lands and waters Specifically EPA would have to

consider the specific uses the Maliseets make of their tribal waters including

traditional ceremonial medicinal and cultural uses affected by water quality EPA must

be fully satisfied that it is able to meet its trust obligation to the Maliseets even if it

approves the State of Maine to administer the NPDES program EPA should seek

assurances from the State of Maine that the state will implement the NPDES program in

a manner which satisfies EPA's trust obligations

3

EPA004855
Solicitor's Opinion attached to Letter from Edward B Cohen Office of the Solicitor Dep't of Interior to

Gary S Guzy Office of General Counsel Envtl Protection Agency at 2 May 16 2000 citations

omitted These conclusions apply with equal weight to Maine's request to apply its revised WQSs in

Maliseet waters

The Houlton Band notes that MICSA and the Maine Implementing Act do not speak to their

water and fishing rights in precisely the same manner as the legislation speaks to the rights of the

Passamaquoddy Tribe and the Penobscot Nation However nothing in that distinction or elsewhere in

MICSA demonstrates or even suggests the absence of federallyprotected water and fishing rights for

the Maliseets First as discussed above it is wellestablished that when the United States sets aside

lands in trust for an Indian tribe it impliedly reserves water and fishing rights regardless of whether the

treaty statute or executive order expressly refers to such rights See eg United States v Aanerud 893

F2d 956 958 8th Cir 1990 holding that tribal members have federallyprotected right to harvest

natural resources on tribal lands notwithstanding silence in treaty setting aside lands for tribe Second

MICSA and the Maine Implementing Act contemplate these rights defining the lands or natural

resources held in trust for the Houlton Band to include any interest in or right involving any real

property or natural resources including water and water rights and hunting and fishing rights 25

USC 1722 b Me Rev Stat tit 30 6203 3 Third the relevant provisions in the Maine

Implementing Act regarding the Passamaquoddy Tribe and the Penobscot Nation are directed at the

State's regulatory authority over the tribes exercise of fishing rights on their reservations not the

existence of those rights altogether See Me Rev Stat tit 30 6207 1 4 S Rep No 96957 at 16

17 37 see also Me Rev Stat tit 30 6206 1 Fourth Congress confirmed in MICSA that Maliseet trust

lands would be treated in the same manner as any other Indian reservation see 25 USC 1725 i and

the Department of the Interior has confirmed that Maliseet trust lands are an Indian reservation for

purposes of federallaw 2

Accordingly regardless of whether the State may have some regulatory authority over the

Houlton Band's exercise of reserved fishing rights in Maliseet waters 25 USC 1725 a Me Rev Stat

tit 30 6204 those rights exist as a matter of federal law Moreover recognizing the Houlton Band's

reserved water and fishing rights and the EPA's trust obligation to protect the Tribe's uses of Maliseet

waters does not operate to preempt the civil criminal or regulatory jurisdiction of the state of Maine

under MICSA See 25 USC 1725 h

To the extent the EPA sees any ambiguity in MICSA or in the foregoing discussion of the Tribe's

federallyprotected water and fishing rights that ambiguity must be resolved in the Band's favor

Federal statutes relating to Indian tribes must be construed liberally in favor of the Indians with

ambiguous provisions interpreted to their benefit Montana v Blackfeet Tribe of Indians 471 US 759

766 1985 and Congressional acts diminishing sovereign tribal rights must be strictly construed with

2

Indeed MICSA expressly provides that the same principles of federal law apply to the Houlton Band as apply to

other federally recognized Indian tribes See 25 USC 1725 hsee also 25 CFR 83.12 a providing that upon

federal recognition a tribe shall be considered a historic tribe and shall be entitled to the privileges and

immunities available to other federally recognized historic tribes by virtue of their government togovernment

relationship with the United States

4

EPA004856
ambiguous provisions interpreted to their benefit Penobscot Nation v Fellencer 164 F3d 706 709 1st

Cir 1999 It is settled law that these Indian canons apply to Indian claim settlement acts including

MICSA d at 708 09 see also eg Parravano v Babbitt 70 F3d at 546 Connecticut ex rei Blumenthal

v US Dept of the Interior 228 F3d 82 92 2d Cir 2000

In sum when the Houlton Band and its members use Maliseet waters including sustenance

fishing in the Meduxnekeag River they exercise rights created and protected by federal law These

rights define and lie at the heart of the EPA's trust responsibility with respect to the authority to set

WQSs in Maliseet waters and with respect to the substance of those water quality standards The EPA

has a trust obligation to ensure the protection of Maliseet uses through its review of the State's revised

WQSs for arsenic acrolein and phenol and should disapprove those standards

II Maine's Use of Qifferent Fish Consumption Rates for Different Toxic Pollutants Is Arbitrary

and Capricious

It is inherently arbitrary and capricious for the state of Maine to vary the fish consumption rate

in developing criteria for different toxic pollutants for the same waters yet that is exactly what Maine

did The Maliseet diet is centered on the natural resources of the Meduxnekeag watershed but eating

large amounts of fish from the river now exposes Maliseet families to the health risks associated with

high levels of environmental contaminants in those waters Recognizing that there were subsistence

fishers who relied on fish from local waters Maine used a fish consumption rate of 138 gday when

calculating the criteria for arsenic to force water quality protective of that sensitive subpopulation 3Yet

for those same waters the state used a rate of only 32.4 gday the general population fish consumption

rate in developing the criteria for phenol and acrolein Having already acknowledged that sensitive

subpopulations in the state rely on local waters for their sustenance Maine must rely on the same

subsistencebased fish consumption rate in developing the criteria for all toxic pollutants for which

humans are exposed through ingestion of fish

4

To do otherwise puts subsistence fishers in the

3

As indicated in our prior comments the Houlton Band of Maliseet Indians asserts that even the 138 gday fish

consumption rate is lower than warranted by EPA's default subsistence fish consumption rate of 142S gday

existing local data and the fact that fish consumption rates have been suppressed in recent decades See eg

Nat I Envtl Justice Advisory Council Fish Consumption and Environmental Justice 4349 2002 available at

http www epagov compliance ejresources publications nejacfishconsump report 1102 pdf discussing

importance of accounting for suppressed consumption in developing fish consumption rates Envtl Protection

Agency Guidance for Conducting Fish Wildlife Consumption Surveys 27 1998 available at

httpl water epa gov scitech swguidance fishshellfishtechguidance upload1999 11 OS fish fishguidpdf

advising that suppressed consumption due to fish advisories in local waters be accounted for State of Maine

Application for Arsenic Water Quality Standard Revision Exhibit 8 page 100 10607 Jan 14 2013 admitting fish

consumption has been suppressed in tribal waters due to contamination concerns and acknowledging that fish

advisories were in place at time of ChemRisk survey hereinafter Maine Arsenic Application The Tribe refers

the EPA to those comments as well as incorporates by reference those aspects of the Penobscot Nation's

supplemental comments dated November 25 2013 insofar as they relate to the inadequacy of the rate Maine

adopted for these criteria and for subsistence fishers in general

4

See eg 40 CFR 131.11 a2 criteria for toxics must protect designated uses including fishable waters

Envtl Protection Agency Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human

Health 111 to 112 2000 available at

http waterepa gov scitech swguidance standards upload 200S OS 06 criteria humanhealth method comple

5

EPA004857
unenviable position of knowing that the fish on their dinner plate grew up in rivers or lakes clean

enough to protect their fishbased diet as far as one toxic pollutant is concerned but not the others But

a fisherman relying on locally caught fish for his daily sustenance should feel secure both that he will not

suffer arsenic poisoning from eating that fish and that he will not suffer other adverse health effects

through chronic exposure to other dangerous toxins from eating that same fishs

So long as Maine has sensitive subpopulations such as the Houlton Band engaged in subsistence

fisheries and so long as it promulgates water quality standard criteria for the toxins on a statewide

basis 6the State must apply the same subsistence fish consumption rate in its formulae for all human

healthbased criteria for toxics in order for those criteria to be scientifically defensible and to protect

designated uses When the Maliseet people consume fish their consumption does not vary based on

the particular toxins in the fish to which they are exposed Therefore the EPA should disapprove

Maine's proposed criteria for acrolein and phenol 7Anything short of that would be arbitrary and

capricious as well as violate the agency's trust responsibility to the Tribe 8

tepdf Through the use of conservative assumptions with respect to both toxicity and exposure parameters the

resulting criteria should provide adequate protection not only for the general population over a lifetime of

exposure but also for special subpopulations who because of high water or fishintake rates have an

increased risk of receiving a dose that would elicit adverse effects

5

See eg Envtl Protection Agency Human Health Ambient Water Quality Criteria and Fish Consumption Rates

Frequently Asked Questions available at

http waterepagov scitech swguidance standards criteria health methodology uploadhhfaqs pdf EPA does

not necessarily expect all consumers to eat only fish from a single State but individuals or groups should be able to

do so without concern for their health 6

While using the general population fish consumption rate from water bodies might make sense if the State chose

to promulgate its water quality standards on a sitespecific water body by water body basis thereby allowing it to

account for different levels of fishing use and the potential absence of subsistence fishers in certain water bodies

the State did not do so here See eg Catherine A O'Neill Protecting the Tribal Harvest The Right to Catch apd

Consume Fish 22 J ENVTL L LITIG 131 14042 2007 describing Oregon Technical Advisory Committee's

recommendation that the Oregon Department of Environmental Quality DEQ assign values to the various

regulated water in Oregon depending on the intensity of fishing activity in those waters and use a fish

consumption rate of 17.5 142.5 or 389 gday respectively for low intermediate or high intensity fishing

activity on that water body Oregon Dep't of Envtl Quality Human Health Criteria Issue Paper Taxies Rulemaking

10 2011 available at

http www deq stateoruswqstandards docs toxics humanhealth rulemaking HumanHealthToxicCriterialssueP

aper pdf explaining basis for choosing statewide subsistence based FCR as opposed to choosing FCR based on

fishing use of individual water bodies as well as basis for moving from original statewide FCR proposal of 17.5

gday to 175 gday Oregon Dep't of Envtl Quality Human Health Water Quality Standards for Toxic Pollutants

and Implementation Policies Rulemaking 2008 2011 available at

httpwww deq stateoruswq standards humanhealthrule htm describing 175 gday statewide FCR Instead

Maine sets its water quality standards on a statewide basis Maine Arsenic Application Exhibit6 page 1 Jan 14

2013 Ch 584 1 If Maine wishes to use a state wide FCR instead of a sitespecific FCR based on fishing use

intensity of individual water bodies then like Oregon it must employ a FCR protective of sensitive subpopulations

throughout the state Finally if Maine chooses to use a water body bywater body approach to the FCR the

burden should be on the state and the regulated community to demonstrate a lack of subsistence fishing on a

water body as opposed to placing the burden on the public to demonstrate the presence of subsistence fishing on

that water body Maine Arsenic Application Exhibit 6 page 23 Ch 58438 requirements regarding developing

more stringent criteria for individual water bodies id at Exhibit8 page 910 EPA's criticism of Ch 584s

placement of this burden on public instead of the state agency

7

See eg Miss Comm'n on Natural Res v Castle 625 F2d 1269 1275 77 5th Cir 1980 recognizing EPA's strong

oversight role over state promulgation of water quality standard criteria Amer Forest Paper Ass'n v US Envtl

6

EPA004858
Woliwon

Thank you

Brenda Commander

Tribal Chief

Protection Agency No 93cv 0694 1996 WL 509601 at 5 7 D DC Sept 4 1996 recognizing EPA's broad

discretion in its selection of data and in its method of calculation of the fish consumption rate including taking a

conservative approach in criteria development

8

See Maine Arsenic Application Exhibit8 page 11 USEPA recommends that Maine DEP proposes statewide

arsenic criteria that MEDEP can demonstrate are protective of the general population as well as the sensitive

subpopulations in Maine notably the Maine Indian Tribes subsistence fishers Such criteria should be derived

from scientifically sound values for the different variables that comprise the calculation of the criteria including

but not limited to a supportable FCR

7

EPA004859